"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Thursday, June 30, 2005

Supreme Court vs. The Almighty

Much useful commentary has been offered on the twin First Amendment cases recently handed down from Olympus. I would only urge everyone to check out Scalia's dissent in McCreary where he points out yet again that the Court is becoming increasingly an anti-democratic force and ought to become anchored in a principled devotion to the original intent of the lawmakers:

Nothing stands behind the Court’s assertion that governmental affirmation of the society’s belief in God is unconstitutional except the Court’s own say-so, citing as support only the unsubstantiated say-so of earlier Courts going back no farther than the mid-20th century....What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle. That is what prevents judges from ruling now this way, now that–thumbs up or thumbs down–as their personal preferences dictate. Today’s opinion forthrightly (or actually, somewhat less than forthrightly) admits that it does not rest upon consistently applied principle. In a revealing footnote the Court acknowledges that the “Establishment Clause doctrine” it purports to be applying “lacks the comfort of categorical absolutes.” What the Court means by this lovely euphemism is that sometimes the Court chooses to decide cases on the principle that government cannot favor religion, and sometimes it does not.
Scalia convincingly argues that the Lemon test, which was a tenuous construct to begin with, should be jettisoned in favor of a straight-foward originalist analysis. Under that view, neither display of the Ten Commandments would run afoul of the First Amendment.

Better still, however, was Justice Thomas' concurrence in Van Orden, where he frankly states that the king has no clothes and calls for a return to originalism AND a rejection of incorporation!
This case would be easy if the Court were willing to abandon the inconsistent guideposts it has adopted for addressing Establishment Clause challenges, and return to the original meaning of the Clause. I have previously suggested that the Clause’s text and history “resis[t] incorporation” against the States.

Thomas calls for a return to the orginal understanding of the First Amendment which was that it prohibited only coercive government action with respect to religion. Such an understanding would simplify the court's jurisprudence in this area, and remove much of the subjective activism that characterizes application of Lemon:

Much, if not all, of this would be avoided if the Court would return to the views of the Framers and adopt coercion as the touchstone for our Establishment Clause inquiry. Every acknowledgment of religion would not give rise to an Establishment Clause claim. Courts would not act as theological commissions, judging the meaning of religious matters. Most important, our precedent would be capable of consistent and coherent application. While the Court correctly rejects the challenge to the Ten Commandments monument on the Texas Capitol grounds, a more fundamental rethinking of our Establishment Clause jurisprudence remains in order.
Conclusion: only a Court deliberately bent on eradicating whatever trace of Christianity remains in our public life could view a Ten Commandments display or monument on state, not Federal, property as an "establishment" of religion by "Congress."

Clarence Thomas for Chief Justice!

Where's the Phalange When You Really Need Them?

The latest from the culture wars:

MADRID, Spain - Parliament legalized gay marriage Thursday, defying conservatives and clergy who opposed making traditionally Roman Catholic Spain the third country to allow same-sex unions nationwide. Jubilant gay activists blew kisses to lawmakers after the vote.


The measure passed the 350-seat Congress of Deputies by a vote of 187 to 147. The bill, part of the ruling Socialists' aggressive agenda for social reform, also lets gay couples adopt children and inherit each others' property.

No doubt this action, as well as similar homosexual assaults on marriage in the Netherlands, Belgium, and Canada, will be cited soon in a Supreme Court opinion as "precedent" supporting a hitherto unknown but suddenly discovered substantive due process right to homosexual "marriage."

You read it here first.

Thursday, June 23, 2005

Beware the (Re)Developers

The Supremes held today that the city of New London, CT can take the property of its citizens in order to redevelop it and deed it to other private parties as part of an urban renewal project. To come to this conclusion they held that although the 5th amendment prohibits a taking by the government for anything but a public "use," what the amendment really means is that the goverment can only take for a public "purpose." They reach this conclusion even while coldly reciting the facts concerning who the city was trying to displace:

Susette Kelo has lived in the Fort Trumbull area since 1997. She has made extensive improvements to her house, which she prizes for its water view. Petitioner Wilhelmina Dery was born in her Fort Trumbull house in 1918 and has lived there her entire life. Her husband Charles (also a petitioner) has lived in the house since they married some 60 years ago. In all, the nine petitioners own 15 properties in Fort Trumbull--4 in parcel 3 of the development plan and 11 in parcel 4A. Ten of the parcels are occupied by the owner or a family member; the other five are held as investment properties. There is no allegation that any of these properties is blighted or otherwise in poor condition; rather, they were condemned only because they happen to be located in the development area.
The developer and the city prevailed by convincing the majority that the privately owned redeveloped property forcibly taken from the petitioners would be for "public purpose" because redevelopment would benefit the city as a whole.

O'Connor, Rehnquist, Scalia, and Thomas dissented, and O'Connor's dissent points out that:
Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded--i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public--in the process.
Justice Thomas, in a separate dissent and relying on originalist jurisprudence, pointed out that the Framers of the 5th amendment intended that takings be accomplished for only public use, not for the much more amorphous and malleable "public purpose" rule put forth by the majority.

Ironically, Justice Thomas observes, while the Court continually refines the understanding of the 4th and 5th amendments to give citizens greater protection in their homes (e.g., Kyllo), they do not extend the same scrutiny to government actions directed at not just illegal searches, but actually taking the home away by force:

"Something has gone seriously awry with this Court's interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not."

Clarence Thomas for Chief Justice.

Wednesday, June 22, 2005

ACLU: NAMBLA si, Minutemen, no.

Via World Net Daily:

"...the ACLU of New Mexico suspended an entire chapter of the organization because a member of the board of directors is leading the state's Minuteman group."

The Minuteman Project is a group of volunteers who monitor the U.S. border with Mexico, notifying the authorities of violations of the immigration law of this country being committed by illegal immigrants crossing the borders. They espouse a strict non-confrontation policy, meaning they do not engage in citizen arrest or vigilante activity.

So the ACLU, self-annointed guardians of free speech, who want NAMBLA to have the freedom to instruct homosexuals how to seduce children, apparently are shocked and horrified that one of their chapter leaders might want to help the U.S. enforce its immigration laws more effectively.

As they say, I'm not making this up.

Tuesday, June 21, 2005

"Whither understanding and rehabilitation?"

Regarding the last posting on serial child molesters, some believe we are too harsh on these monsters by requiring that they report their whereabouts and that their neighbors be informed they have a loaded gun living two doors down pointed right at their children.

Fortunately in Virginia we have a "Civil Commitment" process (pdf file) by which these criminals can be committed to a psychiatric facility even after their criminal sentence has been served. Better than letting them loose, but alas, this process is very costly, and used only in the most severe cases.

Monday, June 20, 2005

Poster Boy for Capital Punishment for Molesters

Via Southern Appeal, comes this story:

Police searching the home of a convicted child molester discovered handwritten lists of more than 36,000 children's names — mostly boys — and codes that appear to indicate how he abused them....The lists are written in loopy cursive on 1,360 pages in seven multicolored, spiral-bound notebooks, according to police. Headings for the logs include "Blond Boys," "Cute Boys" and "Boys who say no," Cornfield said. Schwartzmiller was being held without bail on one count of aggravated sexual assault on a child and six counts of lewd and lascivious conduct on a child, with each count alleging multiple victims.

He also has a lengthy criminal history. If we can't execute a piece of debris like this guy (after a fair trial of course), do we really live in a just society? Apparently we rarely incarcerate these guys for life, so they remain a threat. They need to be executed, to protect us and to punish them for the murder of so many childrens' innocence.

Friday, June 17, 2005

From an excellent blog, The Buck Stops Here, on originalism, addressing the liberal positions that on the one hand judges are too busy/ignorant/lazy to consult the history and origins of a law in order to understand the original intent of its drafters, but on the other hand, they should consult foreign legal sources:

If a judge, despite American legal training, finds it too difficult to understand the history and context of the American Constitution, how likely is it that the judge will be capable of understanding all that is relevant about decisions written in another
language and in a completely different context?

Interesting comments to the post as well. Check it out and then support Thomas for Chief Justice!

If originalism was followed in a principled way, we would not be holding our breath each time the Court issues its opinions. We would have much greater predictability and stability in our SC jurisprudence.

Tuesday, June 14, 2005

Supremes Impose Death Penalty on Peremptory Strikes

Miller -El v. Dretke is the latest assault by our supposedly extremist Supreme Court on capital punishment and more broadly, the use of "peremptory" challenges, and the latest win for convicted murderers trying to escape justice. The majority extends Batson and rules that the mere fact of a statistical disparity in jury selection will support a Batson challenge.

"Proof" of discrimination the majority identified included different questions for black veniremen apparently intended to induce opposition to death so they could be struck and "shuffling" of the venire (apparently a Texas practice whereby the parties can randomly change the venire order, which the prosecution did in this case in a way that resulted in fewer blacks being in the front of the venire pool).

The Court also ruled that discrimination will be proven by showing that black and white jurors were treated differently despite common views about the death penalty:


If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.

The Court also gratuitously refers to the infamous Dallas DA's manual where race is expressly listed as a factor for excluding jurors. Of course this manual has not been in use since at least 1976, and there was NO evidence that it was actually relied upon in this case. Mention of it is simply a red-herring to help justify the Court's other conclusions about racial motivations of the prosecution.

Justice Breyer, concurring, calls outright for the abolition of the peremptory challenge:



Justice Thurgood Marshall predicted that the Court’s rule would not achieve its goal. The only way to"end the racial discrimination that peremptories inject into the jury-selection process," he concluded, was to"eliminat[e] peremptory challenges entirely." Today’s case reinforces Justice Marshall’s concerns.

The dissent, led by perhaps the lone principled originalist on the Court, Clarence Thomas, pointed out that "Miller-El was convicted of capital murder by a jury composed of seven white females, two white males, a black male, a Filipino male, and a Hispanic male." Thus it is disingenous to imply that the jury was stacked with white males.

The majority simply ignores the limits of the AEDPA and considers evidence never presented to the state court. The Court is supposed to view the evidence the state habeas court had before it and decide if that court's decision was "unreasonable."

From the scanty evidence presented to the trial court, "it is at least reasonable to conclude" that purposeful discrimination did not occur, "which means that the state court’s determination to that effect must stand."

Thus, Justice Thomas concludes that the majority is "sanbagging" state courts by going beyond evidence heard in state court to conclude there was racial bias.

He goes on to refute the claim that the two black veniremen singled out by the majority were struck for racial reasons, and also points out that different questions were asked of most black veniremen because most of their jury questionnaires indicated opposition to the death penalty.

Finally he chastises the majority for relying on the boogeyman of the DA's manual:


The majority then tars prosecutors with a manual entitled Jury Selection in a Criminal Case (hereinafter Manual or Sparling Manual), authored by John Sparling, a former Dallas County prosecutor. There is no evidence, however, that [Miller-El's prosecutors] had ever read the Manual—which was written in 1968, almost two decades before Miller-El’s trial. The reason there is no evidence on the question is that Miller-El never asked. During the entire Batson hearing, there is no mention of the Sparling Manual. Miller-El never questioned [the lead prosecutor] about it, and he never questioned [the other prosecutors] at all. The majority simply assumes that all Dallas County prosecutors were racist and remained that way through the mid-1980’s.

He concludes: "On the basis of facts and law, rather than sentiments, Miller-El does not merit the writ."

Unfortunately, only he, Scalia, and Rehnquist see it that way. Thus passeth the peremptory challenge.

Again I say: Clarence Thomas for Chief Justice.

See A Public Defender for a predictably sympathetic view and comments and this from the foaming-at-the-mouth abolitionist folks.

Friday, June 10, 2005

More on Police Use of Force

Special Constable, a UK lawman, has an interesting lesson in police use of force as restricted by British Law (including diagrams!). Very similar to what our officers are required to follow, with the obvious excepion that some UK lawmen are not armed with firearms (used to be VERY few, I thought more or even most were now armed, but I am unclear on that-- when I visited Ireland, none of the Guarda had guns.) and therefore they do not account for use of a firearm as the ultimate level of response to a deadly situation.

Hmmmm... dirtbag armed with a knife vs. Bobby with only pepper spray? I'm glad our cops could simply cap the bad guy in that situation.

Special Constable's is a balanced, responsible exposition of this issue (he disagrees with my take on the Taser video). Unlike, for example, Indefensible's "The Dark Side of American Policing" which references a new book purporting to document all the corrupt, illegal use of force being inflicted by sinister rogue cops.

The hysteria of the flower-power left in this country is truly amazing. I wonder if these clowns have ever been on a ride-along and seen what it is really like out there, and the outstanding job being done by the overwhelming majority of police officers under extremely stressful conditions. That these guys not simply fault-find in the obvious cases of misuse of force, but seem to delight in these breakdowns of police restraint speaks volumes about their own disordered minds.

Thursday, June 09, 2005

Darwin Awards

Circulating on the net are these Darwin Award-winners:

1. When his 38-caliber revolver failed to fire at his intended victim> during a holdup in Long Beach, California, would-be robber James Elliot did something that can only inspire wonder. He peered down the barrel and tried the trigger again. This time it worked.....

And now, the Honorable Mentions:

2. The chef at a hotel in Switzerland lost a finger in a meat-cutting machine and, after a little hopping around, submitted a claim to his insurance company. The company, suspecting negligence, sent out one of its> men to have a look for himself. He tried the machine and lost a finger. The chef's claim was approved!

3. A man who shoveled snow for an hour to clear a space for his car during a blizzard in Chicago returned with his vehicle to find a woman had taken the space. Understandably, he shot her.

4. After stopping for drinks at an illegal bar, a Zimbabwean bus driver found that the 20 mental patients he was supposed to be transporting from Harare to Bulawayo had escaped. Not wanting to admit his incompetence, the driver went to a nearby bus stop and offered everyone waiting there a free ride. He then delivered the passengers to the mental hospital, telling the staff that the patients were very excitable and prone to bizarre fantasies. The deception wasn't discovered for 3 days.

5. An American teenager was in the hospital recovering from serious head wounds received from an oncoming train. When asked how he received the injuries, the lad told police that he was simply trying to see how close he could get his head to a moving train before he was hit.

6. A man walked into a Louisiana Circle-K, put a $20 bill on the counter, and asked for change. When the clerk opened the cash drawer, the man pulled a gun and asked for all the cash in the register, which the clerk promptly provided. The man took the cash from the clerk and fled, leaving the $20 bill on the counter. The total amount of cash he got from the drawer...$15. (Bar exam extra credit: If someone points a gun at you and gives you money, is a crime committed?)

7. A thief burst into a Florida bank one day wearing a ski mask and carrying a gun. Aiming his gun at the guard, the thief yelled, "FREEZE, MOTHER-STICKERS, THIS IS A **** UP!" For a moment, everyone was silent. Then the snickers started. The security guard completely lost it and doubled over laughing. It probably saved his life, because he'd been about to draw his gun. He couldn't have drawn and fired before the thief got him. The thief ran away and is still at large. In memory of the event, the banker later put a plaque on the wall engraved with the words, "Freeze,> mother-stickers, this is a ****-up!"

8. Seems an Arkansas guy wanted some beer pretty badly. He decided that he'd just throw a cinderblock through a liquor store window, grab some booze, and run. So he lifted the cinderblock and heaved it over his head at the window. The cinderblock bounced back and hit the would-be thief on the head, knocking him unconscious. The liquor store window was made of Plexiglas. The whole event was caught on videotape.

9. As a female shopper exited a New York convenience store, a man grabbed her purse and ran. The clerk called 911 immediately, and the woman was able to give them a detailed description of the snatcher. Within minutes, the police apprehended the snatcher. They put him in the car and drove back to the store. The thief was then taken out of the car and told to stand there for a positive ID. To which he replied, "Yes, officer, that's her. That's the lady I stole the purse from."

10. The Ann Arbor News crime column reported that a man walked into a Burger King in Ypsilanti, Michigan, at 5 a.m., flashed a gun, and demanded cash. The clerk turned him down because he said he couldn't open the cash register without a food order. When the man ordered onion rings, the clerk said they weren't available for breakfast. The man, frustrated, walked away.

Wednesday, June 08, 2005

Welcome to the Brave New World

From the front lines of the culture war comes this item:

A 19-year-old accused of causing his teenage girlfriend to miscarry two fetuses by stepping on her stomach was convicted Monday of two counts of murder. Gerardo Flores received an automatic life sentence because prosecutors did not seek the death penalty, which was available under the state's 2003 fetus protection law.
Erica Basoria, 17, acknowledged asking Flores to help end her pregnancy; she could not be prosecuted because of her legal right to abortion.

Very interesting... for the same homicide he could be executed while for her it's exercize of a constitutional "right." The viability of Roe should be questioned when cases like this are the result. What other constitutional "right" is an absolute defense to murder?

Clarence Thomas for Chief Justice-- time to take the constitution back from the social engineers.

Monday, June 06, 2005

Advice of Rights, English style

As a confirmed Irish Republican, I have ambivalent feelings towards the "mother country." But in some criminal justice matters, they have things right. Such as non-unanimous jury verdicts in criminal cases. And this one I really like:

Before the interview commences the suspect is cautioned thus: "You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence."

This, The Policeman's Blog informs us, is the standard advice of rights used in England. I like it because although it protects the 5th amendment right to remain silent, it does not allow a defendant to use it as a sword against the government when they come into court and give a fantastic alibi or self-defense claim that one would reasonably expect to have been given at the time of the accusation if it were true.

I also like it because it does not create an unrebuttable inference of guilt, it merely allows the fact of prior non-disclosure to be added to the entirety of the facts used by the jury to assess credibility.

Post Script on Tasers

In reference to my posting on the Florida Taser video, Ken Lammers and Special Constable have suggested that the officer jumped too quickly to use of the Taser. My point was that when the subject refuses to exit after repeated verbal commands, physical compliance is the next "level" of force. It used to be that this would entail a sharp blow to a body part to stun the person briefly, or an "arm bar" or some other pain compliance technique so they could be removed.

Now, however, the Taser is available. It has not been used frequently enough to really earn a solid place in the "gradation of force" scale that officers utilize. But in this case, using it instead of a forceful compliance technique is reasonable in my estimation. It has the added benefit of allowing the officer to maintain a safe distance from the subject. By the way, just because she is a "she" does not mean she could not present a threat. By her continued non-compliance she was already demonstrating at the least an imcomprehension of her situation.

In short, the Taser is simply a pain compliance technique, with the benefit of the officer not having to close on the subject to apply it. This is particularly important in the close confines of a vehicle compartment.

Dude, it's not interstate commerce!

From today's ruling in Gonzales v. Raich, in which the Supremes ruled that the commerce clause justifies prohibition of personal use marijuana in a state (California, dude!) where that is legal for "medicinal purposes":

Justice O'Connor in dissent had this to say:

the Court has endorsed making it a federal crime to grow small amounts of marijuana in one's own home for one's own medicinal use. This overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently. If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California's experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case.

Justice Thomas, espousing a thoroughly originalist line on the commerce clause that would effectively vitiate a huge chunk of post-New Deal regulatory legislation:


even a Court interested more in the modern than the original understanding of the Constitution ought to resolve cases based on the meaning of words that are actually in the document. Congress is authorized to regulate "Commerce," and respondents' conduct does not qualify under any definition of that term.

And again,

One searches the Court's opinion in vain for any hint of what aspect of American life is reserved to the States. Yet this Court knows that "[t]he Constitution created a Federal Government of limited powers." [citations omitted] That is why today's decision will add no measure of stability to our Commerce Clause jurisprudence: This Court is willing neither to enforce limits on federal power, nor to declare the Tenth Amendment a dead letter. If stability is possible, it is only by discarding the stand-alone substantial effects test and revisiting our definition of "Commerce among the several States." Congress may regulate interstate commerce-- not things that affect it, even when summed together, unless truly "necessary and proper" to regulating interstate commerce.

And Justice Thomas believes the government did not prove in this case that the regulation was in fact necessary to effecting the overall regulatory purpose. Powerful good stuff to a confirmed originalist like myself. So write it down: I'm with the dopeheads on this one. Clarence Thomas for Chief Justice!

Saturday, June 04, 2005

Shocking video

Via Special Constable:

Check out this interesting video of a Florida officer's use of a taser to bring an uncompliant traffic offender into custody. I can just hear the ACLU and their ilk now... they complain when the police use bodily force (baton, compliance strikes) and I'll bet they will complain about this. In their universe, the police just can't win.

I think the officer used the device properly and the woman should have gotten off the darned phone and complied, like he asked her to four times! Cooperation with the police during a lawful stop is not optional!

Thursday, June 02, 2005

If you haven't already discovered Rumpole of the Bailey, you need to rent some episodes (you can get them in the public library). Defense attorneys in particular will love the show, since Rumpole always seems to win, and often skewers the QCs ("Queen's Counsel," the prosecutor) and the ridiculously biased trial judges with his rapier wit. But on the home front he has his match in "she who must be obeyed." A very funny look at English criminal law and the "Old Bailey," London's Central Criminal Court.

Wednesday, June 01, 2005

An Appellate Judge on Law Clerks

Check out this interesting take on appellate clerkships from someone who oughta know. This state court appellate judge comments on reports that Harry Blackmun's law clerks ran the show. Of course, the same was apparently the case with Thurgood Marshall. I love the judge's tag line:

"Appellate judges sit above the fray as the battle unfolds beneath. When the smoke clears and the dust settles, they descend from their lofty perches and shoot the wounded."

boom, boom

Via A Public Defender:

The NYTimes is reporting that a prosecutor in Norwalk, CT punched a defendant in the face, twice, during Court. The defendant was appearing in Court on a long-list of charges and on being denied more time to retain a "real lawyer", became belligerent.
A court-prepared transcript of the proceeding, released on Tuesday, showed that Mr. Rogers [the defendant] had asked the presiding judge, William F. Hickey Jr., for more time to hire a lawyer, became agitated when he did not get his way and was told by the judge to "shut up." According to the transcript, Mr. Rogers cursed, and the judge sentenced him to 30 days in prison for contempt of court and instructed marshals to "take him away." Mr. Rogers nonetheless ended up taking a blow or two before that order was carried out, the witnesses said.

The defendant had picked up a large bucket of files and was attempting to throw it at the judge. The prosecutor, who didn't know if the marshals were going to get to him in time, went after him. Two eyewitnesses, however, report that the marshals had already restrained the defendant when the prosecutor landed two blows, "back to back... boom, boom".


Sweet... of course, A Public Defender has already prejudged the case and found the prosecutor guilty of assault. My idealism is dashed-- I figured these defense attorney types thought everyone is innocent. At least now we know some people are not presumed innocent!

Now that Virginia prosecutors are conservators of the peace and can pack heat, our defendants better be more well-behaved than this guy.

Your flatware is safe for now

All those knife manufacturers ("Knives can kill--they should be treated the same as guns.") can move from England, where they're not welcome, to Florida, where you are safe from liability for manufacturing an object that can be used to inflict injury on someone. It seems that in Florida anyway, gun manufacturers will not be held liable for the criminal misuse of their legal product. I'm sure manufacturers of cars, baseball bats, screwdrivers, and similar items are breathing easier today.